Workers Compensation The Repeat Offender

Transcription

1 Workers Compensation The Repeat Offender James G. Pietras, Esquire Pietras Saracino Smith & Meeks Workers Compensation Defense and Litigation Patricia L. Davidson Qual-Lynx TRICO JIF Third Party Administrator

2 Managing the Repeat Offender

3 Proactive Claims Management vs Reactive Claims Handling

4 Pete and Repeat 1 Pete Repeat

5 Pete Pete s employer describes him as a long-term, performing and valuable employee. Pete sees himself as older and overweight with non-transferrable skills. He is worried about the future, the chances of finding another job should he ever be laid off. He has worked for his employer for 18 years. He just celebrated his 47 th birthday. Last Friday, he hurt his back at work lifting a heavy trash can. He initially shrugged off the injury as no big deal, but the pain was so bad over the weekend, he went to the emergency room on Sunday, not wanting to miss work on Monday. The emergency room doctor asked how he hurt his back and Pete replied, moving furniture. The doctor prescribed a muscle relaxer and pain medication. On Monday, Pete went to work with significant, noticeable pain. His supervisor did not ask Pete what was wrong. Over the next few weeks, the pain wouldn t go away. Pete fearfully tells his supervisor the facts. The incident is reported. Pete is still terrified he might be terminated and tells his adjuster he isn t 100% sure if he hurt his back at work. The adjuster compares Pete s statement to the emergency room notes and denies the claim as not work-related. Only after Pete honestly and correctly conveys the facts to his supervisor and adjuster is his claim accepted under workers compensation.

6 Repeat Repeat is the exact opposite of Pete in so many ways. He has worked for his employer for one (1) year. He is articulate, young and believes finding another job would not be difficult. His supervisor considers him a marginal employee with attitude issues. Repeat has reported three (3) work injuries in the last 12 months; two on Monday morning.

7 Pete and Repeat Repeat s supervisor asked his employer if anything could be done with repeat offenders. A trend analysis was done and sure enough, Repeat caused 92% of all claim costs and he is less than 10% of the employee population. All of his claims were questionable and most were called in on a Monday (red flag). Repeat s unacceptable behavior and attitude should be dealt with. Termination, if appropriate, must be reflective of his work-related issues and not because of his workers compensation situation.

8 Pete and Repeat Workers compensation exists to assist employees that are hurt at work. Employees cannot be terminated solely because of their workers compensation experience. They can, however, be terminated if there are other mitigating factors that deem the employee an unsatisfactory employee. Pete should not have had to fear turning in a legitimate claim; Repeat should be terminated as quickly as legally feasible. Accurate job descriptions, performance management, documentation and communication are imperative to ensure proper compliance and legality. You can manage your claims and insurance costs.

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10 Job Descriptions Good, accurate job descriptions are the corner stone building block of the entire employment system, including workers compensation. An accurate, working job description is the foundation, the starting point, for all claims both work related and non-work related.

11 GOTCHA/Surveillance GOTCHA Go Out To Check On Home Activities This investigative tool is invaluable in terms of cost containment. Investigators conduct unannounced, personal visits to each lost time claimant if the injured worker will be out of work more than 14 days. The opportunity to interview injured workers in their homes provides us with detailed information to support telephonic investigation. These visits confirm or deny the existence of malingering or fraudulent activity, and often highlight other factors that may inhibit a claimant s timely return to work. In addition, a GOTCHA visit can lead to surveillance, if warranted.

12 GOTCHA/Surveillance Surveillance should be conducted when there is knowledge or a strong suspicion of other work while out on temporary disability. Surveillance should only be used when concerns rise to the level of potential fraud. Surveillance is not always appropriate.

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14 Maximum Medical Improvement Maximum medical improvement (MMI): Concept is when an employee is as fully restored as the nature of the injury will allow. Alternate terms for MMI include medical plateau, as good as you re going to get (not cured, not healed, not good as new none of those things), employee s condition is not expected to improve any further. MMI is very important. It is the bright line that takes us from medical and temporary disability issues to permanency issues. MMI on Day One does not mean MMI on Day 120. The MMI opinion from the treating physician is only good on the date it was given.

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16 Permanent Restrictions The definition of permanent restrictions must start with the job description. Failure to have an accurate job description will result in an employer almost never being able to say their employee is incapable of performing the essential duties of their job. If generic job descriptions are utilized, the opportunity to separate employment of the true repeat offender is gone. Employers do not have to accommodate permanent restrictions; however, employers also can t discriminate.

17 Permanent Restrictions/ADA An employer is required to make reasonable accommodation to the known physical or mental disabilities of an otherwise qualified individual unless to do so would impose an undue burden upon the entity. Beware: an individual awarded permanent partial disability under the workers compensation law may be a protected individual if he or she can perform essential functions of job with reasonable accommodation.

18 Fit for Duty vs Functional Capacity Exams Fit for Duty (FFD) examinations are typically ordered by the employee s employer. The FFD exam measures the employee s ability to return to work and/or complete the essential functions of his or her job description. An FFD policy can require that an employee undergo an FFD based upon the following criteria 2 : Return to work following a short-term disability, long-term disability or FMLA Prior to disciplinary action for employee conduct/unacceptable behavior if suspected to be due to medical/psychological cause For work and non-work related injuries whenever there is a direct question about the employee s capability to meet the physical or mental requirements of the job position Unfavorable/negative change in behavior at the work place Decline in job performance believed to be related to physical/mental condition Change in health status that may actually/potentially affect safe job performance Unfavorable change in appearance/affect believed to be related to physical/mental condition

19 Fit for Duty and the ADA ADA provides that an employer can require an employee (at the employer s expense) to attend a fitness exam where: Possible direct threat exists; or Employee may not be able to perform essential job functions; or Employee requests reasonable accommodation

20 Fit for Duty and the ADA The health care practitioner chosen to provide an FFD must only focus on the medical condition which generated the need for the exam It is not appropriate to do a total body exam, unlike a post-offer exam

21 Fit for Duty vs Functional Capacity Exams Functional Capacity Exam (FCE) is typically ordered by the workers compensation adjuster or nurse case manager. In cases where the claimant may not yet be released from medical treatment, but the doctor is finding continued or permanent restrictions, an FCE is sometimes ordered. For pure workers compensation claims, an FCE may be ordered if: There is a reasonable expectation that the injured employee will have permanent restrictions following a work injury In cases where the injured employee has significant pre-existing conditions allegedly aggravated by the work injury and the combination of the two result in a reasonable expectation of permanent restrictions

22 Fit for Duty vs Functional Capacity Exams An FCE cannot be used as a guise to make an employment decision.

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24 Footnotes 1 Source: Pete and Repeat by John A Shega, Owner-Aspire Insurance Agency 2 Source: The Occupational and Environmental Health Center of Rhode Island at